Citation Nr: 1759951 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-00 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 10 percent for tinea pedis, bilateral feet and left hand with onychomycosis, bilateral small toes. REPRESENTATION Appellant represented by: Katie Molter, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to August 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2015. A transcript of the hearing is associated with the file. This matter was remanded in November 2015 by the Board for further development. The Board issued a denial in April 2016, which the Veteran appealed. In June 2017, the Court of Appeals for Veterans Claims (Court) remanded the case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Compensation ratings are based upon the average impairment of earning capacity. To accord justice in the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an extraschedular evaluation. 38 C.F.R. § 3.321 (b)(1). In other words, by regulation, an extraschedular rating may be considered when a case presents "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. At 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of an extraschedular evaluation. Id. In this case, the Veteran seeks an initial rating in excess of 10 percent for tinea pedis, bilateral feet and left hand with onychomycosis, bilateral small toes. He stated at the July 2015 hearing that he constantly has peeling, itching, and burning skin, symptoms which are not expressly described or contemplated by the schedular rating criteria. The Veteran stated he must bleach any areas in which he walks barefoot because his disability is contagious. Thus, the Veteran's tinea pedis of the bilateral feet and left hand with onychomycosis, bilateral small toes may present an unusual disability picture not contemplated by the ratings schedule, and consideration of an extraschedular rating is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Thereafter, submit the Veteran's claim for an increased initial rating to the Under Secretary for Benefits or the Director, Compensation Service for extraschedular consideration per 38 CFR § 3.321(b)(1), and notify the Veteran of such action. 3. After completion of the above, readjudicate the issue of entitlement to an increased initial rating pursuant to § 3.321(b)(1). If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Then, return the case to the Board for appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).